Justice for Black Lives: a Biblical perspective

Wednesday, 9 September 2020  | Yarkov Halik

If I am not for myself, who will be for me? And if I am only for myself, what am I? And if not now, when?

- Pirke Avot, 1:14

The only absolute value is the human possibility of giving the other priority over oneself. - Emmanuel Levinas[1]

The subject begins, starting from its relation, its obligation with regard to the other.

- Emmanuel Levinas[2]

To be on the side of people who are struggling for something doesn’t necessarily mean you’re being political.

- Bob Dylan[3]

... rebellion against an unjust society expresses the spirit of our age. (Emmanuel Levinas[4])

The fate of George Floyd, and the dubious behaviour of police officers in connection with his death, has aroused a wave of sympathy for the social plight of African Americans on a scale not seen since the Civil Rights protest movement of the 1960s. The fact that such long-standing collective grievances can continue to exist to this day reflects the peculiar combination of political freedom and social oppression that’s been the hallmark of US culture from its historical inception. More specifically, these current protests express a sense of frustration with a system of law from which justice seems perversely absent.

The events of May 25^th are likely to continue to produce far-reaching echoes throughout the length and breadth of the American Republic. That is as it should be. For any civilized society, the institutions of justice are not some preconceived structure that, once put into place, exist in perpetuity, operating in a reliable and trouble-free manner till the end of time. Regardless of the excellence of the principles that may have accompanied a legal and juridical system at its inception, an ongoing process of reform and improvement is not merely laudable but necessary. In this sense, the project of justice, inspired and driven by the shortcomings and failings of actual law, is the continuous and ongoing effort to reform legal institutions. Is the latter what these protestors have in mind? Certainly, they are demanding justice for Floyd and those like him. However, the manner in which these demands have been presented indicates a conviction that politics, in and of itself, could be the source of a just society. But does one fight injustice by organizing politically? Further questions arise. The protestors have mobilised around a sense of moral outrage over what appears to have happened to George Floyd. But what is the relationship of morality to politics? Can political life be oriented exclusively by morality and ethical claims? In this respect, no-one in this movement appears to have thought to question that foremost prejudice of the modern age, which holds both that morality can be ‘totally contained in politics’, and, conversely, that the political order is ‘the sole and ultimate repository of good and evil’.[5] On the contrary, I want to suggest that a political claim for morality and justice is only possible because justice itself is quite distinct from politics (and indeed, any kind of political process); at the same time, justice is what all our political activity must be directed towards and never lose sight of. This distinction between politics and peace, law and ethics, justice and morality might seem overly subtle. However, I’ll argue it’s crucial if anything beneficial is to come out of these events.

                                                                        *

Everyone, it seems, is calling for justice for non-white Americans. Yet I see little sign here of much thought given to the question: what precisely is this justice that is being called for? Most people would say: social justice. Nowadays, apart from ‘human rights’, no other expression is thrown about more freely. Indeed, one might almost say it’s the buzz-term of our age, the slogan of the times, as was dialectics for a previous generation. But I wonder if all those many people who invoke the notion of social justice so frequently, and with such vehemence, have ever stopped to consider what it actually means.

Because of the hegemony of the social sciences in our age, it’s difficult to think of justice as anything other than a societal problem. Society, on the other hand, is a numerical whole, a summation that includes everyone indiscriminately (economic life is this universal accounting). But what then happens to justice when it has this weight of numbers that is society pressing in on it from all sides?[6] It must yield to this quantitative absolute. However if, by this reasoning, society has priority over justice, then the latter becomes a means to an end, part of the machinery of social adjustment that makes it possible for people to live and work together harmoniously. Like oil in the gears of a machine, justice ensures that the entire societal mechanism runs smoothly and efficiently. Yet it’s precisely here that we must call a halt to this line of thought. For even if there’s a form of justice that is social, justice itself is never simply a component of the societal equation.

Justice does not come into being from the sheer fact of social association; it’s not merely a function of all those ‘elementary problems of human living-together’ (which is how Hannah Arendt describes the existential domain of politics).[7] Neither is it a by-product of the forms and patterns of social integration. On the contrary, I will argue that justice is anterior to society, the condition for its existence.[8] Of course, all this begs the question: what exactly is justice? Firstly, let me make it clear I’m not referring to those administrative-legal mechanisms whose function is to reconcile divergent social interests. Beyond all that, justice underwrites the humanity of the human. Still, this only seems to compound the problem. For now we’ll need to understand what it is that makes us human. That sounds like a very big question. However, as is often the case with big questions, the answer is really quite straightforward. To be human is to put the other person first. Emmanuel Levinas sums it up: ‘the sign of being human is caring for the other’.[9] To be a human being is to be an ethical being. Justice is the becoming-human of humanity. But why should we have to become human? Are we not born that way? Yes and no; humanity is both a given and a task.

Justice is ‘non-indifference’ to the fate of others.[10] Thus I am no longer purely and simply concerned for my own being. Rather, I am one ‘who has to do with the other’,[11] who cannot be indifferent to their fate. This solicitude and attentiveness, an ‘expression of [a] human responsibility for others’[12] that places the other’s needs first, over and above my own,[13] means justice is love, but in the utterly non-sentimental sense of this word, love without concupiscence.[14] It extends to the extreme point of taking responsibility even for the death of the other.[15] It’s important not to lose sight of this sense of stringency. Justice is a command. However, this is neither an anonymous summons nor a sergeant-major barking orders. Rather, I have received an entreaty from a personal other. And so, justice is ‘between one person and another’ (as Imre Kertesz put it[16]); a demand that the other makes upon me arising from an encounter, a face-to-face situation in which there are no intermediaries. I will call this fundamental, founding dimension of ethics ‘original justice’.

But is not society made up of a virtually infinite number of others? In which case, I could not possibly be in direct, personal contact with all of them at once. And yet even if, on these terms, the individual cannot be responsible when it comes to society as a whole, this doesn’t mean social justice is impossible. Rather, on a societal level, individual responsibility is devolved through third parties. In effect, this is where justice becomes law. We can understand law as the attempt to deal with all those situations in which, by seeking to be responsible to the one who stands before me, my neighbour, I might inadvertently harm another who is not personally present. To the extent that law must be applied irrespective of the personal situation, justice is ratio, a system of law administered through social institutions.[17] Founded on a rationality that formulates general rules, and thus aspires to universality, the purpose of law is to ensure that justice is done on the level of society, where sometimes-conflicting demands must be reconciled.

To the extent that law strives for a ‘simple unity of the diverse integrated by synthesis’,[18] it attempts to reconcile the one with the many. Here there is a risk, however, of losing sight of the irreducibly personal, one-to-one situation, that fundamentum which is original justice. For instance, in Soviet Russia the beautiful ideal of a better society led to the creation of an immense administrative and party machine that ran roughshod over individuals. The problem with ‘strict’ or mechanistic justice is that it lacks attention to the particular case. ‘Universal legality’ must be protected against its own harshness, a harshness that’s inherent to any form of organization but incompatible with real human life.[19] Justice on the level of institutions must be tempered by leniency, by a compassion that modifies the severity of the law. This exigency signals the return of original justice, the face-to-face encounter with another, serving as a reminder that regardless of the intrinsic merits or disadvantages of a system of social law, it does not have the final word. Institutions are necessary, indeed, they’re indispensable, but they’re not an end-in-themselves. And so, ‘politics must be held in check by ethics’.[20]

Social justice must look beyond itself to a form of justice that treats individuals with compassion, thereby taking into account and recognizing the singularity and uniqueness of the person, irreducible to any totality. To this extent, strict justice, justice as law and institution, must expect to be ‘disrupted’ by original justice. But this is also why the pursuit of peace between human beings ‘always works to the detriment of [strict] justice’.[21] Levinas sums up the ‘difficult freedom’ of any political claim for justice:

Since [political] justice constantly has a bad conscience, the demand of charity which precedes it remains and beckons it. And justice, the justice that deserves its name, does not forget that the law is perfectible. It leaves opens the possibility of a revision of a judgement once it is pronounced. And this is very important. Because justice - summoned by charity - nevertheless founds the State and its tyrannical component. By admitting its imperfection, by arranging for recourse for the judged, justice is already questioning the State. This is why democracy is the necessary prolongation of the State. It is not one regime among others, but the only suitable one. This is because it safeguards the capacity to improve or change the law by changing - unfortunate logic! - tyrants, those personalities necessary to the State despite everything.[22]

That original and social justice constitute an antimony might explain why there’s been so much anger with regard to police brutality in the US. Antinomies make no sense unless one is able to ‘hold’ the tension they embody. Otherwise, one will only feel bewildered. Which is precisely the sentiment we see now everywhere. Of course, it is bewildering that a policing function in accordance with a system of law meant to be fair and non-discriminatory, that presumably exists to protect individuals from violence, should itself become a source of violence. The Black Lives Matter protestors have responded to this conundrum with their own bewildering, and bewildered, proposals: to ‘defund’ police forces, or the idea one could simply remove all law enforcement agencies from society (the notion being that if the law itself is lawless, why have any laws at all?).

The disordering of the Logos underlying these proposals is evidence of extreme disorientation. Might it not stem from an inability to understand the fundamental ambivalence that, as I’ve shown, lies at the heart of the relationship between original and social justice, ethics and law? Social justice is necessarily rather than contingently imperfect. What I mean is that this imperfection is not an unfortunate product of historical circumstances. Rather, it’s inherent in any system or institutional mechanism. In this sense, justice is, in the words of Levinas, ‘always to be made more knowing in the name, the memory, of an original goodness of man towards the other. ... A justice always to be perfected against its own harshness’.[23] Moreover, because law is organized without respect to persons in an absolute sense, a certain element of violence is intrinsic to it. Again, as Levinas observed, ‘the exercise of justice demands tribunals and political institutions and even, paradoxically, a certain violence that all justice implies’. And so, ‘Violence is originally justified as the defence of the other, of the neighbour’.[24]

What we can understand from this is that violence within the form of the law – for example, police violence - is something quite different from violence completely outside of any law. There’s always an element of violence in the State; the important thing, however, is that, if and when it does occur, recourse to judicial measures is possible - in short, that violence occurs in the framework of a society that is stable, ruled by laws and forming the order of a polity, a city, a country (anyone who has doubts about that, I can only suggest they try living in Lebanon for a few months!). That’s not to say one shouldn’t do everything in one’s power to avoid violence, Still, one cannot say no legitimate violence can exist, as an unqualified pacifism would have it.

The idea violence might be entirely proscribed is not only unrealistic, it’s dangerous. And this is because a pacifism that seeks to do away with all violence will invariably need to employ the worst sort of violence to achieve such an end.[25] Let us remember that the absolutist justice of revolutionary political movements has always led to ‘horrible physical destruction and revolutionary changes of the social order beyond reasonable guesses’.[26]

I’ve suggested original justice, care for the stranger, is the ultimate criterion of humanity.[27] ‘Who would have helped?’ is the question that arises again and again in Charlotte Delbo’s mind as she walks through the crowded streets of Paris after her return from Auschwitz:

Facing people, I wonder, “would he have helped me walk, that one? Would he have given me a little of his water?”. I examine all the people I see - passers-by, strangers - With some, I know from the very first glance they wouldn’t have helped me walk, nor given me a mouthful of water, and I need not hear them speak to know their voices ring false, as do their words ... Then who? Who remains? And I continue to seek.[28]

What Delbo sought in the face of strangers is a fundamental intuition of humanity, something we’ve identified with the event of original justice. But even as societal justice, and thereby political rationality, is grounded in this intuition, it’s also perpetually in danger of losing sight of it. To understand why this occurs, we must consider more closely the complex relation between these two moments of justice - on the one hand, institutions and law, and on the other, the original ethical relation that arises through encounter with the neighbour, a personal other.

Equality is the buzz-word of democratic social systems. It’s often nominated as the grounding principle of justice. In fact, it’s altogether secondary. The accommodation referred to in the phrase, ‘equality of all persons before the law’, means to deal with the situation of third parties obtruding into the personal sphere of original justice. But whilst such an equalization is necessary in a social context involving relations that always exceed face-to-face interactions, it cannot apply to the personal sphere of original justice. The reason is that original justice, this entreaty of the other, is a demand made upon me; as such, it is not negotiable. I cannot excuse myself. In which case, original justice presupposes not so much equality as an absolute inequality between self and other; the other person always has more needs than I. So, insofar as I’m infinitely responsible to my neighbour, there is a radical asymmetry, non-reciprocity and disproportion here. That is, my obligations to the other always exceed my rights (and of course, the same applies to the other in relation to me). Any system of social justice presupposes this ‘excessive’ personal obligation, and would not be possible without it. However, to the extent the responsibility I owe another is interminable, the prospect of a just society is always exactly that: prospective, something to come, always in the future, never definitively realized, once and for all time.

If the full and satisfactory attainment of justice ‘has never come to pass in history’,[29] if it must always remain incomplete on a political level, it’s because justice has the character of an imperative. Just as one is never done with justice, I can never say of the other person, ‘they are no concern of mine’. If justice could be substantiated and firmed up, once and for all, it would no longer be an imperative but an indicative, something already done and finished. The point here is that my personal debt to the other can never be fully discharged; ‘I cannot wash my hands of obligation’, as John Drabinski puts it.[30] And so, to the extent that ‘we can never be clear of our debts to the Other’,[31] the work of justice is endless.

Might this feature of original justice - an infinitude of obligation - provide some insight into why the social movement whose current focus is police brutality has taken the distinctive form of protest activism? I want to suggest it’s the very activity of their activism that serves to alleviate, for these protestors, this bothersome sense of an undischargeable debt.[32] In short, the appeal of protest activism is that it provides those who participate in it with a kind of psychic release. But there’s more to this than the psychological common-place that doing something, as opposed to passively standing by, provides a sense of satisfaction (i.e., ‘well at least I’ve tried to do something!’). There is also an inchoate recognition that being active mitigates what would otherwise be felt as the crushing weight of taking on the entire destiny of one’s fellow being. But is it enough to make oneself feel better through such a psychological expedient? A distinction between legal and ethical liability will help us to clarify what is at stake here. With legal liability, if I take action, the extent of my culpability is effectively lessened (for instance, someone has fallen overboard from a boat, and rather than just standing by watching, I throw them a life-vest). But the same does not apply to the ethical claim made upon me by the neighbour. The reason is that this kind of obligation and responsibility is ethical-metaphysical rather than worldly-political.

In the wordly sphere of politics and history, human beings feel ‘sustained in their activities by the certainty of being right’.[33] In which case, ethics is subordinated to the logic of history, of nations, of peoples and of the political order. To be a political being is to demand for oneself a ‘place in their sun’, as Pascal put it. Here the human is a conatus essendi, a self-satisfied creature who, through their striving and effort to be, tirelessly works to surmount all the difficulties pressing in from the world of necessity. This also applies to their sense of moral obligation. A political being is able to satisfy themselves that they’ve done all that’s humanly possible to ensure justice has been expedited. Thanks to my worldly-political commitment, my conscience is clear; haven’t I donated to all the right charities, supported all the right causes? And so, I feel comfortable. I’ve done everything I can do. Thereby I can relieve myself of responsibility! But in ethical-metaphysical terms, no amount of worldly right, of active commitment, suffices to acquit me of my obligations towards the other, for here the ego doesn’t have the luxury of returning to itself in order to be established triumphantly on the ground of being, in glorious self-preoccupation.

My sense, then, is that these protestors love the ‘idea’ of justice - that is, justice as a social ideal, which prompts one to write letters to political leaders, to march on the streets, even burn flags or police cars. Whereas when it comes to the call of justice that confronts me in the naked look of a human being in all their vulnerability and singularity, whether this be a ‘person of colour’, an executioner or a Head of State, they’re unable to bear its acutely disconcerting intra-psychic burden.[34] So to get some relief from this deeply unsettling demand that gives them no peace, that takes them ‘hostage’, as Levinas once put it, they head to the streets, to drown out this nagging and worrisome charge with all manner of energy and agitation. But with their righteous anger, might they not then be in danger of falling asleep in the very midst of all this activity, of becoming complacent, embourgoisé, of lapsing into self-satisfied repose?

All of which suggests that what we’re seeing here is not so much a genuine commitment to social change as a self-serving attempt to ‘save one’s soul through political action’.[35] At the very least, the noisy rancour and exhortation of protest marches distracts from the intractable difficulty of justice. By difficulty, I’m not referring to the inertia and obstinacy of institutions. I mean, rather, that the demand for justice on a political level does not absolve me from practicing it in my own life, where it remains hidden from view, unable to serve as self-publicity or a salve for one’s conscience. In short, these two dimensions of justice, individual and social, are distinct. One does not make up for the other. Both are required, neither on their own are enough. People are always liable to overlook this antinomian aspect of justice, as both political and person, for instance, by collapsing one term into the other (an example of this is that popular maxim of 1960’s counter-culture activism, ‘the personal is the political’).[36]

Original justice, this infinite generosity towards the other, is always something that concerns me personally. It means doing something no-one else can do in my place. But can we not also go too far in this direction? Wouldn’t this absolute personalism relegate ethics to a completely private world, thus leaving the public sphere to its own devices, prey to all the Machiavellis of this world? Moreover, how could we not be concerned about the possible political motivations that might subsist behind seemingly wholesome human impulses such as generosity? A psychoanalysis of political life lays bare this generosity, exposing the self-interest, or perhaps needy altruism, lurking at the heart of the personal practice of justice. In which case, wouldn’t we be justified in regarding any impulse of the individual to take responsibility for others as potentially harbouring the same doubtful motivations as those who want to make the voice of their conscience resound on the streets? I don’t mean to undermine charity or rob it of its goodness. Rather, it’s a matter of recognizing that political commitment and personal virtue are equally susceptible to becoming self-interested. Moreover, when the good is politicized, it’s hardly differentiable from egoism. The project of justice cannot ever be triumphal, and certainly righteous or pious virtue do not guarantee its efficacy. The task of building a just society calls for vigilance, stringency and wakefulness, not the sleepwalking of enthusiasts, do-gooders and well-wishers.

So where does this leave us? It leaves us with the realization that, whilst justice does require the work of institutions and of politics, it also cannot do without those indiscriminate, small and ‘senseless’ kindness about which Ikonnikov, a character in Vasily Grossman’s magisterial novel, Life and Fate, speaks so movingly:

I don’t believe in your “Good”. I believe in human kindness. ... The kindness of an old woman carrying a piece of bread to a prisoner, the kindness of a soldier allowing a wounded enemy to drink from his water-flask, the kindness of youth towards age, the kindness of a peasant hiding a Jew in his loft. ... The private kindness of one individual towards another; a petty, thoughtless kindness; an unwitnessed kindness. Something we could call senseless kindness. A kindness outside any system of social or religious good.[37]

What else does one hear in the demands of these protestors? ‘The system is corrupt’, they cry, ‘we must tear it down!’. But again, given what’s been said thus far about the unnerving antinomy of personal and political justice, such a demand is both naïve and foolish. For all systems and institutions are, if not corrupt, then at least potentially corruptible. This is neither an accident of their formation nor evidence of a malicious plot to oppress those who are powerless; rather, it’s bound up, as we’ve seen, with their very nature. Institutions are always imperfect. Yet this does not justify abolishing them. The way forward is to recognize that the reform of institutions is endless, this endlessness being precisely the meaning of original justice. It’s also why social justice, even as it puts the face-to-face, personal encounter out of which it came firmly behind itself, must always be prepared to return to this, its original, ever-renewing source. In the words of Levinas, ‘all justice established as regime, anticipates a justice which is more just, and also leaves a place for ... each person’s resources of charity and compassion’.[38]

The justice that cares for the other is ‘before’ the justice of judges and but also ‘after’ it.[39] In the midst of the ‘universality of law’ that is the State, charity is an even more universal universality, grounded in a dimension of personal being irreducible to any system or totality. The demand to recognize the other, the neighbour, is the call to a far more radical kind of justice, the ‘call of humanity, which is not yet accomplished in the State’.[40] The point is that no matter how all-encompassing are the political and institutional measures for justice, on their own, they will never be enough.

Original justice, which moves ‘from one private man to another’,[41] entails seeking the other in a space ‘where no administration could ever reach him’.[42] Of course, because people can be unreliable, there is always a temptation to replace the responsibility of persons with a regime of impersonal procedures that function regardless of the whim of individuals. Yet one must not ever believe such a regimented system can be relied upon to take care of everything, so that original justice would no longer be necessary. This belief is liable to arise when charity is entirely administered by institutions, when laws are installed that claim to be able ‘once and for all’ to ‘produce what can each time only be a personal act of compassion and love’.[43] At the same time, however, supra-personal institutions are necessary. A society cannot be built purely on motives of the heart.[44] Even as justice on a societal level acknowledges its source in the personal realm of charity, its priorities are different, and must be different, since with societal justice, ‘there intervenes a form of equality and measure, a set of social rules to be established according to the judgement of the State, and therefore according to politics’.[45]

As soon as one transcends the immediacy of the face-to-face relation - that is, in a society composed of a multitude - political institutions are required if there is to be a social order in which ‘allowance is made for the other’.[46] This is where the ‘Earthly morality’ of the Hebrew prophets provides a necessary corrective to the Christian ‘law of love’,[47] inviting those who seek an anchorite’s salvation ‘into the difficult detour that leads to third parties that have remained outside of love. Justice alone satisfies its need for purity. In a sense this amounts to saying that dialogue is called upon to play a privileged role in the work of social justice. But it cannot resemble the intimate society, and it is not the emotion of love that constitutes it. The law has priority over charity. Man is also in this sense a political animal’.[48]

Yarkov Halik is a former architect and teacher. He was last seen in the vicinity of Clayton, Victoria.

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